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2008 Supreme(Ori) 331
PRADIP MOHANTY, J.
Saman alias Somanath Rout
Versus
State of Orissa.
Criminal Appeal No. 235 of 1989
Decided On : 31-7-2008.
M/s. P.C. Jena and S.J. Das, for Appellant; P.K. Pattnaik, Addl. Govt. Advocate, for Respondent.
The main legal point established is that the evidence must meet the criteria for grievous hurt as defined under Section 320, IPC to sustain a conviction under Section 326, IPC.
Headnote:
IPC - Grievous Hurt - Section 326, IPC - Section 320, IPC - The court found that the evidence did not establish that the deceased suffered from severe bodily pain for twenty days or more, as required under Section 320, IPC, and therefore altered the conviction from Section 326, IPC to Section 324, IPC.
Fact of the Case:
The appellant was convicted under Section 326, IPC for causing grievous hurt to the deceased, who later succumbed to the injuries. The appellant denied the allegation and claimed that another family might have assaulted the deceased.
Finding of the Court:
The trial court found the appellant guilty under Section 326, IPC, but the higher court altered the conviction to Section 324, IPC, as the evidence did not establish severe bodily pain for the required period.
Issues: The main issue was whether the appellant's act constituted grievous hurt under Section 326, IPC or a lesser offense under Section 324, IPC.
Ratio Decidendi: The court analyzed the evidence and the definition of grievous hurt under Section 320, IPC, and concluded that the evidence did not meet the criteria for grievous hurt, leading to the alteration of the conviction.
Final Decision: The court partly allowed the criminal appeal, altering the conviction to Section 324, IPC and sentencing the appellant accordingly.
Judgement
This appeal arises out of the judgment and order dated 30-6-1989 passed by the Addl. Sessions Judge, Balasore convicting the appellant under Section 326, IPC and sentencing him to undergo rigorous imprisonment for three years in S. T. Nol. 15/23 of 1989.
2. The case of the prosecution is that on 24-5-1988 during morning hour the accused went to the paddy field of the deceased to plough the land as a labourer. At about 8.00 a.m. the deceased went to his paddy field, where the accused was ploughing, with perched rice and water for his tiffin. On reaching the spot, the deceased ploughed the land and the accused spread manure with the help of a spade. All on a sudden, the accused/appellant inflicted a blow by means of the spade M.O.-II on the head of the deceased. As a consequence, the deceased fell down facing downward. The nearby witnesses carried the deceased to his house in an unconscious state. Soon he was taken to Balasofe District Headquarters Hospital for his treatment. Thereafter he was shifted to S.C.B. Medical College Hospital, Guttack for better treatment. The deceased was discharged from the hospital on 5.6.1988. However, on 20.7.1988 he succumbed to the injuries. Initially a case was registered under section 326, IPC and subsequently final form was submitted under section 304 IPC. But charge was framed under section 302, IPC.
3. The plea of the accused/appellant was complete denial of the allegation. His further plea was that the Khatua family of his village might have assaulted the deceased.
4. In order to prove its case, the prosecution examined as many as fourteen witnesses including three doctors. P.Ws. 4, 5, 6 and 11 are said to be eye-witnesses to the occurrence. Defence examined none.
5. The learned Addl. Sessions Judge, Balasore, who tried the case, by his judgment dated 30.6.1989 found the appellant guilty of the offence under Section 326, IPC convicted him thereunder and sentenced him to undergo imprisonment as already indicated. The finding of the trial court was that the prosecution has failed to bring home the charge under section 302, IPC but it has proved a case under section 326, IPC.
6. Mr. Jena, learned counsel for the appellant, submitted that there is absolutely no material against the present appellant to convict him in order to prove the case under section 326, IPC. He further submits that the act committed by the appellant comes under section 324, IPC. According to him, in order to establish a case under section 326, IPC, the prosecution has to prove that grievous hurt was caused by the accused with deadly weapons. But spade does not come under the purview of deadly weapon.
7. Mr. Pattnaik, learned Addl. Government Advocate vehemently contended that the trial court has rightly passed the order of conviction under section 326, IPC. The evidence of three doctors i.e. P.Ws. 9, 10 and 11 is very clear and cogent. He further submits that the injury was on the spinal cord of the deceased near the neck, which was grievous in nature and led to cause death. The evidence of P.W. 4, who is a trustworthy witness, with regard to the blow given by the accused/appellant to the deceased has been amply corroborated by P.Ws. 5, 6 and 11. Therefore, interference with the sentence as imposed on the appellant is not warranted.
8. Perused the LCR, more particularly the deposition of the witnesses including the three doctors. From the materials placed by the prosecution it is evident that the present appellant inflicted blows on the deceased by the spade. The question for consideration is what offence has been committed by the appellant. In order to convict the appellant under section 326, IPC, it is the duty of the prosecution to prove that the grievous hurt had been caused to the deceased with a deadly weapon. The grievous hurt has been defined under Section 320, IPC. Clause-8 of the Section 320, IPC provides that any hurt which endangers life or which causes the sufferer to be during the space of twenty days in
